Covert Searches Are Increasing Under Patriot Act

Underscoring changes in domestic surveillance allowed under the Patriot Act, the Justice Department said in a report released today that it had conducted hundreds more secret searches around the country last year.

The department said the use of covert search powers, which were enhanced under the Patriot Act, showed how federal investigators had stepped up the war against terrorism in the United States over the last 32 months.

But civil liberties groups expressed concern over the increase because the targets of the searches were given fewer legal protections than suspects in normal criminal cases. The process of obtaining approval and executing the searches and surveillance is also shrouded in secrecy.

In an annual report to Congress, the Justice Department said it obtained approval to conduct electronic surveillance and physical searches in more than 1,700 intelligence cases last year. According to the department, the number of searches had surged 85% in the last two years; about 1,200 searches were authorized in 2002, and 900 in 2001.

The report did not identify or discuss specific cases.

U.S. Atty. Gen. John Ashcroft said in a statement that the data illustrated how the Justice Department and the FBI were “acting judiciously and moving aggressively” to uncover and prevent terrorist attacks.

“These court-approved surveillance and search orders are vital to keeping America safe from terror,” Ashcroft asserted.

The burst of activity was a direct result of the easing of standards for intelligence-gathering that was authorized by the Patriot Act, the terrorism-fighting law enacted by Congress six weeks after the attacks on the Pentagon and World Trade Center.

Under the new law, the government can obtain secret warrants by showing that a significant purpose of the search has to do with intelligence-gathering, as opposed to a criminal investigation.

Before the change, the law was interpreted as requiring the government to show that intelligence-gathering was the primary reason for the request.

Many experts think the old rules were too restrictive, and unduly impeded the hunt for potential terrorists. The new procedures were upheld in court in November 2002. The search applications are reviewed by a federal tribunal known as the Foreign Intelligence Surveillance Court. The court was set up in the mid-1970s as a check on government power amid revelations of massive illegal spying on political dissidents and other citizens by the FBI.

But the court, which conducts secret proceedings, has become a lightning rod for civil liberties concerns in the post-Sept. 11 era as the number of surveillance applications and the volume of the court’s work has rapidly grown.

A major fear is that investigators are using the so-called FISA procedures to bypass the stricter requirements that cover the issuance of search warrants in criminal cases, in which the government must show probable cause that a crime was committed. The concern is that the process is enabling the government to chip away at protections afforded defendants under the 4th Amendment prohibition against illegal searches.

Information gleaned from the intelligence searches can later be used in criminal prosecutions, but defendants in such proceedings have fewer rights to attack the basis of the searches or to obtain intercepted information.

Moreover, if the intelligence searches do not lead to criminal prosecutions, the targets are never told that they were under surveillance; in criminal cases, suspects must receive notice of any surveillance even if they are never charged.

“The real mistakes never come to light” in intelligence cases, said James X. Dempsey, executive director of the Center for Democracy & Technology, a Washington think tank. He said he was concerned that “an increasing number [of the FISA cases] are likely to end up in criminal prosecutions.”

“I am troubled by the secrecy.” Dempsey said. “There is no way to know whether the pendulum has swung too far.”

Adding to the concern is the fact that the number of intelligence searches in recent years has come to rival and possibly exceed the number of searches in criminal cases, as the government has marshaled federal resources against fighting terrorism instead of other crimes.

According to the Administrative Office of the U.S. Courts, federal and state courts authorized the use of wiretaps and other electronic surveillance in about 1,400 cases last year, compared with the 1,700 FISA warrants, which also cover physical searches.

“They are shifting the government apparatus for surveillance to a much more secret process with much less judicial oversight,” said Timothy Edgar, legislative counsel for the American Civil Liberties Union in Washington.

By classifying cases as intelligence cases, he said, “they are doing an end run around the 4th Amendment.”